Report me and my cause aright
Hamlet, Act V, Scene 2
|Volume XXVII, No. 1||January 2008|
In behalf of the ARJD Executive Board, our very best wishes to all members and their families for a Healthy and Happy New Year. We look forward to renewing our friendships and networking in Pittsburgh in August, 2008.
Your ARJD executive board met for a relaxed dinner at The Monocle Restaurant in Washington, DC, prior to our Fall board meeting. Next day, Friday, November 16, 2007 the April 2007 meeting minutes were approved without changes and a draft version of the Anchorage Annual Meeting minutes was distributed to the Board for feedback. Thanks to Secretary Kevin Loftus for his work on both documents.
By all reports our 2007 annual meeting in Anchorage was a resounding success. From the Arrival Dinner hosted by Vice President Edith Lavin, through a wonderful Educational Program of speakers and topics engineered by Clifford Allen. Keynote speaker Father Michael Oleska, an imposing figure, held everyone's attention with his stories, especially those about local customs, family and living conditions. Marilyn May, Clerk of the Alaska Supreme Court was kind enough to help with many advance details and extended a kind invitation for us to tour her Court, escorted by her staff member.
I doubt we will ever stay in a hotel again that has a million dollar staircase made out of jade but it was certainly a topic of conversation among guests, as was the fire drill which pulled hotel guests out mid-afternoon in various states of dress.
Most grateful thanks to all vendor/sponsors for their continuing generosity and support of after-hours activities. Lexis recently distributed, by mail, photos taken on the AK dinner cruise and I heard Loislaw were posting gold-panning outing photos on the web. Thomson-West took us a mile high in the sky and shared AK's favorite balladeer. You guys/gals outdid yourselves!
Our E-Publishing Committee, now chaired by Ralph Preston, continues to move forward on Authentication & Verification of documents issues and will be updating you shortly on their activities. Other committees also provided information for panel sessions in Alaska. Bilee Cauley and Leah Walker continue to attract and embrace new members into the ARJD with that warm and welcoming committee how could anyone refuse? The ARJD Membership Form has been updated to reflect who is eligible to be a member. Ineligible, but interested parties, may attend educational meetings upon payment of fees.
By the way, Leah is seeking a mentor with experience in publishing contracts for one of our new members, if you can help please contact her. Our Kenyan members are gathering up new members as they visit other judiciaries around the world. It was wonderful to greet members from several countries at the Alaska meeting, some of whom traveled very long distances to get there, Guam, Kenya, etc. Also to have local attendees participate in our educational sessions which they indicated are hard to come by there.
Edith Lavin and Claude Marquis are working on a project related to putting all citations in footnotes and should have an update for members soon.
The Executive Committee determined that all members should be covered under the ARJD's annual ($650) membership in Scribes and we are proceeding accordingly.
Our Treasurer Tim Fuller and Executive Committee continue to address cost concerns regarding annual meetings. Though some of our costs were substantively reduced for the meeting in Anchorage we need to continue to exercise caution moving forward. After lengthy discussion our Officers determined that registration fees for members need to be raised by $75, to $225, and guest fees will also rise to $75 per person for the 2008 Pittsburgh event. Though our vendors are extremely generous in their support, currently the ARJD picks up many of the costs for meals, audio/visual equipment, transportation, speaker honorariums, awards, postage and the like. It was determined that $50 of the increase in member registration fees will help offset our educational program expenses. The increase in guest registration fees will help offset costs associated with the increasing number of guests attending. We'd like to continue to encourage their support and the enjoyment of sharing our meetings with family members.
Kevin Loftus spearheaded the site check of Halifax, NS hotels for 2009 and reported back on several facilities, most popular were: The Lord Nelson, Courtyard by Marriott, and the Prince George Hotels. Rates range from $159-169 per night, plus tax.
You will be advised in due course as to final hotel selection.
We've heard that Clerk/Reporter Janette Bloom is leaving the Nevada Supreme Court and looking forward to the next step on her career ladder of success. Since she has freed up some time she has been asked to work on site planning for the Las Vegas, Nevada 2010 meeting.
Sorry if I missed anyone. Do know that your ARJD Officers and Committee chairs take their jobs seriously and put much effort into all endeavors in your behalf. Our next meeting is at the Omni William Penn Hotel in Pittsburgh, PA August 7-11, 2008. Further details will be forthcoming in the Spring. Enjoy your holiday festivities with family and friends.
Sincere Regards, Wilma M. Grant, ARJD President 2006-2008
The Harvard Law School and the American Society of International Law recently hosted a conference of international jurists entitled "Transnational Judicial Dialogue: Strengthening Networks and Mechanisms for Judicial Consultation and Cooperation." Many of the jurists in attendance, including retired Supreme Court Justice Sandra Day O'Connor, discussed the value they placed on professional networking as a way to defend judicial independence and support the rule of law. In response to an article on the conference in Harvard Law Today, an alumni magazine, ARJD founder and first president, Henry C. Lind, wrote a letter to the editor that was published in the May 2007 edition in which he described founding the ARJD as a forum for communication and cooperation among official reporters of judicial decisions.
For me, the highlight of the 2006 ARJD convention in Kansas City was the side trip to Topeka, specifically to the Monroe Elementary School. It is the only unit of the National Park System commemorating a U.S. Supreme Court case, Brown v. Bd. of Education, 347 U.S. 483 (1954), a decision that President George W. Bush described on May 17, 2004, at the dedication ceremony, as "a decision that changed America for the better, and forever."
I did not know what Kansas Reporter Richard Ross had planned that warm, sunny August day when our bus stopped in front of the former segregated public elementary school, but I learned more when curator Cheryl Brown Henderson, daughter of Oliver L. Brown, spoke to our group. Kansas had been the site of eleven lawsuits from 1881 to 1949 challenging school segregation. As practiced in Kansas, segregated schools existed only in communities of 15,000 or more people and only in elementary schools, one of which was Monroe.
Starting in the 1930s, Howard University Law Professor Charles Hamilton Houston devised a strategy for combating the institutionalized segregation that had been sanctioned by the U.S. Supreme Court's landmark case of Plessy v. Ferguson, 163 U.S. 537 (1896). More than 150 courageous plaintiffs -- many were added so that physical intimidation would not succeed -- with lawyers such as Thurgood Marshall (first in his class at Howard Law in 1933) brought multiple NAACP-sponsored lawsuits in various states challenging the "separate but equal facilities" underpinning of Plessy v. Ferguson.
Under the leadership of new Chief Justice Earl Warren, a former governor of California, the Supreme Court consolidated five cases from the District of Columbia, Delaware, Kansas, South Carolina, and Virginia. The Kansas case was put first because Kansas, unlike the others, had always been a "free" state without a history of slavery. Of the eight plaintiffs in the Topeka case, one was male, Oliver L. Brown, and he was listed first intentionally over coplaintiff Darlene Brown. (Curator Henderson pointed out the irony of discriminating on the basis of gender while challenging racial discrimination.)
Oliver L. Brown's daughter Linda, who lived a block from Sumner Elementary School had to walk six blocks to the bus to take her to the segregated Monroe Elementary School. As directed by the NAACP leadership, Brown and other parents each attempted to enroll their children in the closest neighborhood school in the fall of 1951. They were each refused enrollment and directed to the segregated schools. Linda Brown Thompson later recalled the experience in a 2004 PBS documentary:
". . . well. like I say, we lived in an integrated neighborhood and I had all of these playmates of different nationalities. And so when I found out that day that I might be able to go to their school, I was just thrilled, you know. And I remember walking over to Sumner school with my dad that day and going up the steps of the school and the school looked so big to a smaller child. And I remember going inside and my dad spoke with someone and then he went into the inner office with the principal and they left me out . . . to sit outside with the secretary. And while he was in the inner office, I could hear voices and hear his voice raised, you know, as the conversation went on. And then he immediately came out of the office, took me by the hand and we walked home from the school. I just couldn't understand what was happening because I was so sure that I was going to go to school with Mona and Guinevere, Wanda, and all of my playmates."
I can only guess how difficult it was for those parents to take their children into those schools to face certain rejection, but I am glad they and their lawyers challenged the system.
2008 Annual Meeting: Planned Education Program
The planning for the education program is coming along well. Three excellent speakers have agreed to make presentations in Pittsburgh: Professor Peter W. Martin, who is the Jane M.G. Foster Professor of Law (and former Dean) of Cornell Law School and co-founder of the Legal Information Institute; Judge Gerald Lebovits, who is a New York City Civil Court judge and adjunct professor of law; and Ross E. Davies, who is a professor of law at the George Mason University School of Law.
A recent example of Professor Martin's writing has been posted on the ARJD listserv, entitled "Reconfiguring Law Reports and the Concept of Precedent for a Digital Age."
Judge Lebovits has written a publication, "Advanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts (2004)," that the New York State Office of Court Administration distributes to law clerks and judges in New York State, and an online abstract exploring a subject about which almost nothing has been written, "How to Write an Honest Judicial Opinion." By the time we meet this coming August, Judge Lebovits's article on this topic will appear in the Georgetown Journal of Legal Ethics.
As a student, Professor Davies served as editor-and-chief of the University of Chicago Law Review and as editor of the Harvard Journal of Law and Policy. He has clerked for Judge Diane P. Wood of the United States Court of Appeals for the Seventh District and practiced law with the Washington D.C. firms of Gibson Dunn & Crutcher LLP and Shea and Gardner. Since 1997, Professor Davies has been editor-in-chief of the Green Bag, An Entertaining Journal of Law (www.greenbag.org).
A special thanks goes to Kevin Loftus, Vice President of the ARJD, and Reporter of Decisions of the Supreme Court of Connecticut, for preparing the comprehensive summaries of the education presentations at the 2007 annual meeting that appear below.
The first speaker at our annual meeting in Anchorage was Judge David Mannheimer of the Alaska Court of Appeals. Raised in Des Moines, Iowa, Judge Mannheimer received his law degree from the University of California, Berkeley, and served as an Assistant Attorney General in Alaska until his appointment to the Court of Appeals in 1990.
Judge Mannheimer spoke on the topic of changes in decision writing and reporting brought about by the Internet. He described the history of reporting from handwritten descriptions of court proceedings to published reports. The collection and availability of law reports, even the 22,000 opinions in the ancient English Year Books, on the Internet makes research vastly easier, without going to the actual sources. Judge Mannheimer pointed out the dilemma of citing sources found online. You may copy the print cite that is included online, but the website is the more available source.
Judge Mannheimer addressed the issue of online publications that can be edited and updated on a daily basis with little or no trace of the prior version. Citing such sources is problematic because of its changing nature. Whereas older print editions remain available, superseded electronic versions disappear. When the printing press made it possible to publish second and subsequent editions of a work, editors and authors saw the need to number or otherwise label the different editions. Judge Mannheimer suggested that some form of identification of editions of online materials must be developed. He noted the contribution of the ARJD in the development of a uniform generic system of citation, and urged that we give thought to developing a workable protocol for the creation and preservation of all the different legal resources that exist solely in electronic form.
Judge Mannheimer also discussed the advent of the video record, i.e., the use of audio and video recordings in court cases. While previously written opinions have relied on transcripts of proceedings, the availability of video (or a holographic record in the future) could alter the present deference that appellate courts afford trial judges on matters of credibility and demeanor because the video record transforms the written record and recreates the trial for the appellate panel. As technology improves and is more available, the access to evidence by appellate courts will be increased. Recordings of trial court proceedings will enable appellate courts to make the type of findings that have been reserved to trial judges. Recently, the U.S. Supreme Court included a link to an online videotape in the Court's published opinion in Scott v. Harris, 127 S. Ct. 1769 (2007). The trial court had found a contested issue of fact based on conflicting testimony, but the Court relied on the video to refute one version of the facts. Judge Mannheimer sees increasing demands on reporters to include Internet links to video from the record. The time is fast approaching when appellate courts will insist that audio or video clips crucial to an opinion be included in the published report.
The second speaker at our annual meeting was Anna Bradley, CEO of Criterion 508, a company that provides solutions for problems with compliance with § 508 of the Federal Rehabilitation Act (29 U.S.C. 794d), which requires access to technology by persons with disabilities. Ms. Bradley addressed the topic of "Accessibility of Americans with Disabilities: Implications for Websites." Ms. Bradley is a graduate of Drake University where she also earned a Masters degree and completed Drake University's doctoral program in educational leadership.
Section 508 of the Rehabilitation Act, as amended in 1998, provides that "[w]hen developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency . . . shall ensure that the electronic and information technology allows, regardless of the type of medium of the technology, (i) individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities; and (ii) individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities. . . ." In 1998, Congress amended the Rehabilitation Act to require Federal agencies (1) to make their electronic and information technology accessible to people with disabilities, (2) to eliminate barriers to people with disabilities and (3) to encourage the development of technologies that would help achieve those goals.
Disabilities affect everyone. A significant number of friends, relatives and coworkers have disabilities. Aging baby boomers will increase that number. Many persons with disabilities are unable to perform jobs that they otherwise could do except for the problems of accessibility of electronic information. Section 508 is intended to address those problems. Ms. Bradley defines accessibly as whether electronic content is accessible to people with disabilities who use a variety of assistive technology to interact with that content. The enforcement mechanism of § 508 is the amendment of the federal acquisition regulations so that vendors of electronic and information technology (E&IT) must make that information accessible to people with disabilities or federal agencies are barred from purchasing it. E&IT is Electronic or Information technology that is used to electronically create, convert, or duplicate information, and it applies to software applications, operating systems, web based Internet information and applications, telecommunications products (telephones, FAX machines, voice recorders), video and multimedia products, desktop and portable computers, electronic documents and archives. Under certain circumstances, issues like national security and weapons systems trump the requirements of § 508. The law applies to all Federal agencies when they develop, procure, maintain, or use electronic and information technology. Under § 508, federal agencies must give disabled employees and members of the public access to information that is comparable to the access available to others. Section 508 accessibility involves two key issues. The first is how people with disabilities access electronic information and involves the creation of assistive devices. The second issue is how electronic information functions with assistive devices used by people with disabilities. This involves the elimination by providers of electronic information of barriers to accessing that information with assistive devices. Currently, 30 states have adopted their own accessible procurement policies based on § 508 standards. Those selling E&IT to the Federal government are responsible for designing and manufacturing Section 508 compliant products. Individuals with disabilities may file complaints with agencies they believe to be in violation of section 508 or private lawsuits in Federal district court. Ms. Bradley gave several examples of litigation initiated to challenge barriers to access. Federal agencies are required to provide procedures for resolving complaints by individuals.
Ms. Bradley described how barriers to access can be eliminated by making information technologies compatible with the various assistive devices that are available and being used by people with disabilities. Many forms of information are not available even through assistive technologies. For the user with a disability, the challenge is to identify assistive technology that can provide the most convenient access to electronic information. For the electronic information provider, the challenge is to remove the obstacles that prevent assistive technology from functioning effectively.
The third speaker at our annual meeting was the Rev. Dr. Michael James Oleksa, a Russian Orthodox priest whose speech focused on the sources and effect of intercultural MIScommunication. Father Oleksa was born in Allentown, Pennsylvania, and has spent almost forty years in Alaska. He has served as a village priest, a university professor and a consultant on intercultural relations and communication, and has authored several books on Alaskan native cultures and histories. His four-part Public Broadcasting Special, "Communication Across Cultures," has been widely acclaimed. Father Oleksa graduated from Georgetown University in 1969 and then attended St. Vladimir's Seminary in New York. He received a doctoral degree from the Faculty of Orthodox Theology at the University of Presov in Slovakia. In 1970, Father Oleksa was invited to an Alutiig village on Kodiak Island to be a teacher in a village-run school, teaching in native Alutiig, in English and in Russian.
The professionals who came to Alaska to educate Alaskans over a century ago followed the east coast model of immigrant assimilation. They had no clue that Alaska was culturally very different from the rest of the country. It was like sending Peace Corp volunteers into a foreign country without any training in the culture. When things went wrong, the professionals grumbled, "These kids, these people, this place" as if something was wrong with the native people because they were not like the professionals. MAXIM 1: Miscommunication will happen. It is inevitable because you can never say perfectly, accurately and completely what you mean. And if you did, the person listening will not take it 100% the way you meant it. That is because our language is laden with a cultural imprint. MAXIM 2: When miscommunication happens, who ever has less power suffers for the miscommunication. The failure of early educators to communicate with native people was assessed as a failure by the students because it was the educators who were in charge of making that assessment. And when miscommunication has been the story of your life, it is perceived, not as miscommunication, but as deliberate conscious prejudice, discrimination and injustice.
Father Oleksa depicts communication between people as two icebergs. Only 10% of the communication is above the surface, that is your public persona. The other 90% is the person that you are, much of which you are not even aware of.
What is culture? Culture is the way you see the world. It is difficult to see how your culture affects your own perspective. Father Oleksa used several examples to show almost opposite responses to the same word. Animal in native American cultures is a superior creature worthy of gratitude and respect. In western cultures, animals are subservient, dumb beasts. The concept of mother is different even to brothers. Each person's own mother colors one's perception, and even the experience of the same mother differs over time. Different cultures have different concepts of time. Germanic cultures keep strict time. Lateness is considered extremely rude. Russian cultures, however, keep approximate time. Lateness is expected. The concept of school is shaped by the experience. School to east coast immigrants, mandatory and free to all people, was a means to assimilation and success for the immigrants' future generations, a valuable resource not to be wasted. To generations of Alaskans, however, school meant forced assimilation in a foreign language (English) and punishment, a generally negative experience. Different cultures value different institutions differently.
Father Oleksa made several attempts to define culture, from the way you see the world, and the ball game of life that you play and the rules of that game, to the story into which you were born, the story of your grandparents, your parents, you and your children and descendants. It is in the telling of that story that you learn the rules of the game that you play, from hearing stories about and watching the people you come from. What stories have been handed down? What values have you internalized? We live in a world where people see the world differently, play the game differently, and that affects the way that we understand each other and the words we use and what we mean by them.
Below the surface of the iceberg, we have learned behaviors as infants that affect the way that we understand people and communicate with them, but we don't even know it. At the bottom of the iceberg, we have tempo. The speed of life, from big city fast to southern deference, affects the tempo of conversation. A southerner waiting for an opportunity to speak without interrupting is perceived as having nothing to say. Tempo affects styles of politeness, British deference vs. American casualness, formality vs. familiarity. Different cultures have different music, the high and low pitches with which different messages are communicated. The distances at which people feel comfortable during conversation varies; too far in your culture is perceived as aloof and too close as intrusive. When the comfort zone changes from culture to culture, perceived slights are inevitable. The rituals of a culture are written into the script. In American culture, "How are you?" means nothing more than "hello." In other cultures, it is a substantive question.
What can be learned from all this? That people are different? You knew that before. But they are different in ways that you might not have expected. They are different in tempo, music, distance, volume and ritual. They are different in the way that they show they are being polite. One man's politeness can come across to another man as rudeness. Father Oleksa's rule of thumb: Give people -- especially when you know that there is a difference in cultural background -- give them the benefit of the doubt. They didn't get up this morning to be rude, to show you that they are ignorant or to push your buttons and get you mad. That probably is not in their best interest. If that's the way they come across, it's a misunderstanding.
The fourth speaker at the annual meeting was Katherine D. Clark (Casey) from the United States Government Printing Office (GPO), whose presentation was entitled, "Authentication and Verification of Documents." Casey is a national account manager for GPO. Her accounts include the federal court system, the State Department, the General Services Administration, the Veterans Administration and some 20 smaller agencies. A Clemson undergraduate, Casey recently obtained her masters degree from the Rochester Institute of Technology and expects to complete her thesis soon.
Casey's presentation described the vast FDsys project at GPO. FDsys is GPO's response to the digital age. The acrobreviation stands for Future Digital System, a plan to capture the content of every federal document, past and future, and to authenticate and preserve those documents and all future versions of each document and to make that information available to users. With $39 million in funding, GPO plans by FDsys to become the source and keeper of government information. The verification and authentication of government documents will be built into the system.
GPO's mission is to provide the three branches of the federal government with expert publishing production and printing services. GPO is the printer for the 148 federal agencies. GPO also seeks to provide information in perpetuity, free with public access in partnership with the 1,500 federal depository libraries. All services are provided on a nonprofit, cost recovery basis. Most government information is now expected to be available in an electronic format, which raises the issues of authentication and permanent public access. Both new and old information must be available in multiple formats, and, as noted by speaker Anna Bradley on Thursday, the information must be accessible to disabled users.
In 2004, GPO released its Strategic Vision for the 21st Century, which changed GPO from a print-centric to a content-centric organization. The GPO increased its internal units, adding a Security and Intelligent Documents Unit and a Digital Media Services Unit to its organization. The focus of GPO has shifted from print products to digital products.
GPO issued two "White Papers," one on Authentication and one on Version Control. The objective of authentication is to assure that government documents are official and authoritative and to ensure that the documents were not changed. "Authentication" is defined as the "validation of a user, a computer, or some digital object to ensure that it is what it claims to be. In the specific context of the Future Digital System, the assurance that an object is as the author or issuer intended it. "Certification" is defined as proof of authority; the process of ensuring that a digital object is the authentic content issued by the author. "Official Content" is defined content approved by or harvested from the official source in accordance with accepted specifications. In the judicial realm, however, digital is not official. Generally, the most recent print version of a judicial opinion is considered official. "Official" for purposes of FDsys is that if the information comes from a government website, it is official government information. GPO continues working on the definition of "official."
A key issue to come out of the authentication white paper is the level of authentication. The first level is that the document is authentic, although it may not be official. The second level is that the document is official. To be so designated, the document MUST be authentic. FDsys must be able to authenticate not only pdf files, also image, video, ASCII and audio files. Anything that GPO designates as authentic must bear an integrity mark, that is some identifying emblem that designates the document as authentic. The document will also include "Certificate information," that is a statement of the source of the document and GPO's statement of certification. The certificate information may also include, for judicial, the statement that only the print version is considered official. Also, version information would be included in the certificate information. The Future Digital System must also provide a means by which the component parts of a document can be authenticated. This concept is called granularity and allows documents to undergo version changes part by part. FDsys calls for documentation of the chain of responsibility in the certificate information, to designate as the source of the document the official government entity responsible for producing it. Retrospective authentication envisions the authentication of previously existing documents as well as new documents. Document maintenance under FDsys provides for the reauthentication of a document that has been altered.
The second "White Paper," concerned Version Control, which GPO defines as the process of evaluating electronic publications against a set of standards that defines the version control policy. The publication noted the need for a version control policy. A version is defined as a unique manifestation of a publication. In the area of version control, GPO needs to be able to control the release of new versions, and there is a need for standards for what constitutes a separate version and what triggers a new version. Version detection and version identification concern notification to a user of which version he or she has located, and version crosswalks deal with how versions relate to each other. The white paper also described the role of depository libraries in keeping superseded versions of documents.
The 200 year old GPO has developed many systems over time and has disparate systems of old and new information. The agency now wants to streamline the operation into a single, content in-dissemination out system. The process is facilitated by new technologies that allow automated storage, authentication, verification and preservation. Many agencies produce documents on their own. Desktop publishing has allowed the proliferation of files produced. Those "fugitive documents" must be recaptured into the system. GPO harvests documents from government websites and recaptures them back into the system. The goal is to preserve all documents that GPO has, a low long term access and make content authentic and official. GPO seeks to store the content in a manner that is independent of any particular hardware or software component over a long period of time.
The strategic vision and the white papers framed the Future Digital System. The FDsys will automate the collection and dissemination of electronic information from all branches of government. The information will be permanently available in electronic format, authenticated and versioned, accessible for Web searching, viewing, downloading and printing, and available for conventional and on-demand printing. The system being developed is called an open archival information system (OAIS). Under such a system, the originators of the content bring in the digital content, and GPO changes it into an authenticated, version controlled, permanently accessible document and delivers it back out to the end users. FDsys is presently in its first phase. Subsequent phases will explore automation of processes, expanded storage capacity, disaster recovery systems and enhanced authentication.
The GPO website is www.gpo.gov/projects/fdsys.htm. There is a blog linked to that site (directly http://fdsys.blogspot.com). Casey welcomes input from our association.
Even if FDsys meets its goals, it is not presently applicable to state documents. Someone at GPO should be examining extended applicability. States and the federal government should consider legislation to preserve all documents.
Honors Committee chairman Richard Ross, Reporter of Kansas, reports that there have been no nominations for the Henry Lind Award submitted to the committee since Judge Alex Kozinski was given the award in 2004 in New York City. Any ARJD member may nominate a candidate for the award. Honors must be voted on at one annual meeting for recognition at the following meeting. The ARJD normally invites the honoree to the annual meeting at ARJD expense. The honoree may be a speaker at that meeting. Members were asked to consider candidates for the award. It is the responsibility of the member making the nomination to provide information in support of the nomination.
Website Committee chairman Andy Ashe, Deputy Reporter of New York, is looking for a successor as website committee chair. In addition, Andy continues to solicit links to the member courts' websites, including links to style manuals able to be published online.
There is also a need for members to write "how tos" on subjects such as writing headnotes; working with justices, clerks, and publishers; running a Reporter's office, and other topics that members might think helpful. It should be emphasized that all this information will be available on the Internet publicly. This material should be e-mailed to Leah Walker.
ARJD Vice President, Kevin Loftus, Reporter of Connecticut, reports that it is not too early to start thinking about the Halifax, Nova Scotia, meeting on August 6-10, 2009. Kevin conducted a site visit to Halifax in June. The harbor side downtown area is very walkable, being about 15 blocks wide along the harbor and six or seven blocks up the hill away from the harbor.
There are flights to Halifax from Montreal and Boston. There is also a six-hour ferry from Portland, Maine, to Yarmouth, Nova Scotia, with bus connections to Halifax for those who do not bring their cars on the ferry. The link for schedules and fares is: http://www.catferry.com.
ARJD President Wilma Grant encourages persons planning to attend the August 7-11, 2008, meeting in Pittsburgh to use the Omni William Penn website to sign up early. Use the ARJD code preset on the website when registering online. The code if making reservations by phone is "ARJD2008".
The slate of officers for 2007-2008 put forward by committee chair, Shauna Thomas, which included Tim Fuller to repeat as Treasurer; Claude Marquis, Supreme Court of Canada, as incoming Secretary; Wilma Grant as a second term President; Kevin Loftus as Vice President; and Barbara Kincaid as a second term Past President has been approved unanimously.
The first roundtable discussion, titled: "What Do New ARJD Members Want" was moderated by Leah A. Walker, Technical Assistant, United States Supreme Court.
Leah noted that a mailing packet had been approved by the executive board and was ready for mailing to new members and to nonmember reporters for solicitation purposes. The new members (those who joined in the past five years) responded to Leah's email solicitation with four topics of interest to new members.
1. A mentor program that would match new members with more experienced members who have similar functions, caseloads, publishers, geographic location or headnote formats. The idea was generally accepted, and Leah stated that she would be contacting older members about serving as mentors as needed.
2. The topic of clinics or classes on headnote drafting, opinion editing and proofreading, possibly for CLE credit, was expanded initially to include the question whether CLE credit for attendance at the educational portions of the annual meetings was possible. It was noted that the symposium at the New York meeting in 2004 was preapproved for CLE credit in New York. Letters describing the program and indicating that it had been approved for CLE in New York were made available to attendees. Because the requirements of each state differ, it is incumbent upon the individual member to determine what is required to qualify the ARJD sessions for credit, and whether such qualification must be obtained in advance. The ARJD will attempt to accommodate members in obtaining credit by providing any available information. Sample CLE forms from the different states (both forms that signify attendance and forms for preapproval of the sessions) should be submitted to the board. Anyone who needs a form completed for credit for this year's program should send it to Wilma Grant. Leah Walker will draft an attendance verification form. The possibility of posting the educational schedule on the website was raised as a convenient way of making the program available for preapproval in the states that require preapproval.
Whether or not CLE credit is available, new members are interested in craft workshops on reporters' office skills (headnote drafting, opinion editing, proofreading). There was a general consensus that such programs would be helpful to some members and something that this organization should provide. Some members noted that past roundtable discussions on the skills of a reporter's office were helpful and older members were willing to offer their advice. Also, unstructured roundtables at which members could ask questions on office procedures were also helpful.
3. New members surveyed suggested increased use of the website, for example, job postings and topics and minutes from past meetings. The need for discretion was also noted as all topics are not suitable for public release. It was noted that currently many questions are asked and answered on the website. Leah wondered whether past topics and answers could be indexed for easy access.
4. Greater awareness of job of reporters. New members surveyed saw a need for some publicity about reporters to courts, judges and law professors. Perhaps invitations to courts to attend the ARJD sessions would help. The board will take up the issue whether to offer attendance at sessions for a fee. As for publicity, perhaps we could send a speaker to chief justice and chief judge meetings.
The second Roundtable Discussion, titled: "Authentication of Legal Documents" was moderated by Ralph W. Preston, Reporter of Decisions, Supreme Court of Ohio.
The American Association of Law Libraries (AALL) had issued a state-by-state report on the authentication of online legal documents and concluded that many states have at least some official documents available only online. Because none of that information was able to be authenticated, the AALL concluded that it was not reliable. Some states have abandoned paper documentation of online information. At the 2006 Kansas City meeting, the ARJD decided that the Electronic Publishing Committee would draft a position paper on authentication of online documents. Ralph and Ed Jessen, the California Reporter of Judicial Decisions, attended the AALL National Summit on Authentic Legal Information in the Digital Age in Chicago last April (2007). Ralph summarized the ARJD involvement in that meeting. The ARJD position paper was warmly received at the AALL summit and at the AALL meeting in New Orleans. The ARJD is out front on the importance of retaining paper backup of online documents.
The availability of documents only online creates two problems, authentication and permanent public access. The AALL state-by-state report reviews the extent to which government documents are being made available online only. The AALL concluded that "a significant number of state online legal resources are official but none are authenticated or afford ready authentication by standard methods. State online primary legal sources are therefore not sufficiently trustworthy. Citizens and law researchers may reasonably doubt their authority and should approach such resources critically." The AALL states that no state is authenticating any "official" online document. Ralph reported that the Ohio cases online are authenticated with a digital signature, but because those cases are not considered "official," the AALL statement is technically accurate.
What is online authentication? A document is authentic if it can be compared to the official version in a way that viewers can see some mark, certificate or other evidence that assures accuracy. Types of authentication are: digital signatures; public key encryption; public key infrastructure; and digital watermarks.
Ralph asked whether any of our courts post cases online as "official." At most, the electronic versions are claimed to be copies (usually pdf) of the official. No jurisdiction represented considers its online opinions to be official.
Katherine Clark from the Government Printing Office (GPO), a speaker scheduled for the Saturday session, stated that it was GPO's position that any online document can be authenticated, but no document may be considered official if it is not authenticated. Authentication is achieved by some sort of signature or marking and a way to verify that the mark makes it authentic. As to future reliability, the GPO will assume responsibility for continuous authentication of documents over which GPO has assumed control. GPO assumes that more and more documents will be available only in digital form in the future. It intends to enable authentication of online documents rather than to avoid having online official documents.
Ralph sees authentication as the tip of the iceberg, with permanent public access the greater lurking problem. Jurisdictions that have chosen online only, i.e. the Indiana Administrative Code, have done so to save print expenses without addressing the problems of authentication and permanence. That practice may be shortsighted if costs of authentication and permanence are later incurred. The AALL wants state legislatures to require authentication and permanence, but legislatures may be reluctant to spend money on authentication when they opted for online only to save money. As electronic data bases accumulate opinions, those entire data bases will have to be converted when the next generation of document storage comes along. If that expense is too great and the conversion is not done, those documents will be lost forever. Are we approaching a new dark ages? Assuring permanent public access is vital.
The question was raised as to just how accurate an online version can be. Everyone using a computer knows that there can be glitches. As long as it is backed up with a printed, archived original, let the electronic version be "close enough." Some would argue that all documents start on word processors as electronic documents. Why let print get in the way? Those interested in the archiving of information can't wait for the all digital world because digital (unlike print) is searchable and requires less space. Accessibility and retrieval of information is facilitated by the digital form. Ralph's experience in Ohio, where some 30,000 cases that had been posted online in Word had to be reposted in pdf form, highlights the permanence problem. That very limited conversion was time consuming, and the court faced the question of accuracy of the transfer. The future conversion of millions of documents will be an overwhelming task. Judicial publishers are more attuned than other government publishers to the problem of permanence due to their traditional reliance on prior printed case law. But our reliance on print may endure only so long in the face of pressures to go digital. Understanding the implications of abandoning print publication is vital to wise decision making in the future.
The problem of permanent access exists for reporters now with respect to online statutes. Prior versions of statutes are often applicable to appeals but are not available online. The Government Printing Office project, future digital system, would approach the problem of version identification with respect to federal documents by labeling, saving and making available old versions of all materials.
One member felt that online accuracy was not a big problem if you use reputable sources like Lexis, Westlaw and Lois, and in case of a discrepancy, the official print version controls. Permanence, however, was seen as a greater problem.
Ralph concluded that it is important to have an official document against which you can authenticate other copies, that is in a form that assures permanent public access. We may be in a new dark age as technology races ahead with little concern for authenticity and permanence. As Judge Mannheimer stated on Thursday, the current technology revolution rivals the printing press in its effect on the information publishing industry.
"Outstanding Vendor" awards were presented at the annual meeting to Tom Leighton and Joe Kubes of Thomson West, to Anders Ganten, Nikki Daugherty and Brian Kennedy of LexisNexis, and to Sue Rogers of Loislaw in appreciation of the contributions made to the ARJD over the past years by Thomson West, LexisNexis and Loislaw.
As we went to press, the Executive Board of the ARJD endorsed a request before the National Conference of Commissioners on Uniform State Laws (NCCUSL) "to create a study committee to determine whether or not it would be useful to create a uniform or model law to require online legal materials, especially those considered to be official, to be secure and authenticated, and preserved for permanent public access." The American Association of Law Libraries (AALL), in its endorsement of the study committee, plans to indicate to the NCCUSL that it is pleased that the findings of the AALL report on the authentication of online legal documents are supported by the recent ARJD position paper on the authentication of online documents (see the summary of the August 2007 roundtable discussion on authentication moderated by Ralph Preston in this issue of the Catchline). The AALL plans to state its concurrence with the assessment of the ARJD that "action is needed now because government agencies, legislatures and courts are moving to a more online environment without the necessary life cycle safeguards for legal information."
President: Wilma M. Grant,
Supreme Court of the United States
Vice President: Kevin Loftus,
Supreme Court of Connecticut
Secretary: Claude Marquis,
Supreme Court of Canada
Treasurer: Tim Fuller,
Supreme Court of Washington
Past President: Barbara Kincaid
Supreme Court of Canada
2007-2008 Committee Chairpersons
Education/Newsletter Editor: C. Clifford Allen,
Supreme Judicial Court of Massachusetts
Newsletter Publisher: Edward Jessen,
Supreme Court of California
Electronic Publishing: Ralph W. Preston,
Supreme Court of Ohio;
Honors: Richard D. Ross,
Kansas Supreme Court and Appeals Court
Membership: Bilee Cauley,
Alabama Appellate Courts
Nominating Committee: Shauna Thomas,
Supreme Court of Montana
Site Selection Committee: Janette Bloom,
Supreme Court of Nevada
Website Committee: Charles A. Ashe,
New York State Law Reporting Bureau
President: Wilma Grant
Manager, Publications Unit, Office of Data Systems
Supreme Court of the United States
Vice-President: Kevin J. Loftus
Reporter of Decisions
Supreme Court of Connecticut
Secretary: Claude Marquis
Chief Law Editor, Law Branch
Supreme Court of Canada
Treasurer: Truman S. Fuller
Reporter of Decisions
Supreme Court of Washington
The Catchline Editor: C. Clifford Allen
Supreme Judicial Court of Massachusetts
Publisher: Edward W. Jessen
Supreme Court of California
Layout: Denise Lynch
Supreme Court of California
Volume XXVII, No. 1 January 2008
Visit our Web site at http://www.arjd.washlaw.edu